To Ask or Not to Ask: The Facebook Password Question

June 1, 2012
Requiring new or prospective hires to provide access to their Facebook accounts, and the resulting backlash, have been at the forefront of business news

Requiring new or prospective hires to provide access to their Facebook accounts, and the resulting backlash, have been at the forefront of business news this year. It's easy to see how this occurred. In a stagnant economy, businesses keep a closer eye on risk. New employees are a source of enormous potential risk — administrative costs, investment in hiring and training, potential harm to customer relationships, and so on.

With the generation gap widening, and as more peer groups enter the workplace, rolling the dice on the judgment and professionalism of a young, new hire appears to magnify this risk. Social media has been integrated into most areas of business, so it is natural for businesses to leverage it to avoid the risks that new employees pose. Unfortunately, instead of reducing risk, investigation of a potential hire's social media accounts is a Pandora's Box instead of a cure.

The lure of social media accounts, such as Facebook and Twitter, is easy to see. Candidates easily control a resume or recommendation, which they frequently tailor for specific potential employers. Teasing out the substance from the spin can be difficult. A common perception is that a Facebook account does not contain that spin. People perceive it as the public face that the employee shows outside of work. This is entirely wrong — there is just as much spin in a social publication as there is in a resume a prospect ‘publishes’ to prospective employers. It's true that people will reveal more about themselves on Facebook than they might in a resume, but it's ‘spun’ to communicate to friends, family and others. Those ‘wild and crazy’ pictures that might turn off an employer may not reflect the real personality of the prospect, but only what the prospect is trying to push out in the social world. Spin exists everywhere, especially in social media, so you cannot count on it as a good representation of the employee.

Bad judgment is fairly objective, however; no matter what ‘spin’ the prospect is putting on their Facebook page, publishing ‘wild and crazy’ pictures is bad judgment — and whether your prospect has bad judgment is very much worth knowing. The problem is that, even if you glean good information out of the ‘spin’ of a social media account, you will probably elicit a lot of unnecessary information that puts you at risk. Even a quick glance at a Facebook page will let you know the sexual orientation, politics and associations of the prospect. Furthermore, you are likely to learn if the prospect has a disability, or if they are at risk for a genetic disability (i.e., their father posts about his heart condition or prostate cancer). You are likely to learn their ethnic background, religion and other information you do not need. If you then refuse to hire, or hire but terminate or discipline the prospect, you could face the charge of acting discriminatorily on the knowledge you would not have had without access to the prospect's social media account.

Furthermore, pressuring a prospect to give up their passwords and account information is probably tortious interference with contract. In legal language, that means someone, in this case the employer, has committed a wrong in a civil contract. The prospect has a contract with each social media provider; those contracts generally require that the prospect keep their account information secret. If an employer causes the prospect to breach that agreement, the employer may be liable to the social media provider. The big question here is damages; what is the harm — did the social media provider lose any money because of the employer's actions? At first blush, no — however, the social media provider will argue that breaching the security of its members' accounts threatens the perceived value that all members have in their accounts and can result in fewer people signing up and a loss in revenue. While that would require expensive experts to prove at trial, I would not be surprised if Facebook or another large provider decided to try to make an example of an employer by suing; the defense costs alone would be enormous, win or lose.

The federal government is considering whether the ability of employers to peer into prospects' or employees' social media accounts chills their rights to discuss the terms and conditions of their employment with other employees — a right guaranteed under the National Labor Relations Act. Finally, several states are considering or have passed laws prohibiting such demands by employers.

It is likely that the strongest downside to a demand for a prospect's or employee's social media account is the damage it does to the employment relationship. When you communicate that you do not trust an employee on their first day, and demand very intrusive access to what they consider their personal lives, the damage can be irreversible. Such demands, in my opinion, greatly increase the risk that you are hiring an employee who will not care about the business and will leave at the first opportunity.

Christopher Ezold is a partner at The Ezold Law Firm, P.C., a Philadelphia-based boutique law firm focusing on business, employment and health care law. Ezold acts as outside general counsel to his business clients, providing advice on a wide range of matters and litigation. Ezold has a L.L.M. in taxation from the Villanova University School of Law, serves as general counsel to the Main Line Chamber of Commerce and is the chairman of the board of directors of the Magellan Leadership Group. Ezold is licensed to practice law in Pennsylvania, Delaware and New Jersey.